Reversal Hinged Upon Court’s Failure to Determine Ability to Pay.
Here is a case that focuses on a very special fee-shifting statute: Penal Code section 987.8, which provides that a criminal defendant provided with public legal assistance may, at the conclusion of the criminal proceedings, be ordered to reimburse the county for attorney’s fees “if the court determines that the defendant has the present ability to pay all or a part of the cost . . . .”
Defendant in People v. Pacheco, Case No. H034454 (6th Dist. Aug. 31, 2010) (certified for publication) was ordered to repay $100 in attorney’s fees (and other costs, which we will not discuss) under Penal Code section 987.8, which was also made a condition of probation.
Defendant appealed, gaining a reversal and remand to determine if he could truly pay the fees and deleting the fee payment as a condition of probation.
The overriding basis for reversal was that the lower court never made an inquiry into defendant’s ability to pay the fees, a crucial condition precedent under the statutory scheme for imposition of a fee award. Beyond that, it was erroneous to direct payment of fees as a condition of probation. End result: reversal of the fee award and remand, but no probation condition in any event.